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September 8, 2008

Is SCOTUS really thinking about rehearing Kennedy child rape case?

As detailed in this post at SCOTUSblog by Lyle Denniston, the Supreme Court today has asked for some more briefing concerning the motion for rehearing in the Kennedy child rape case. Here are details from that posts:

The Supreme Court on Monday called for new legal briefs on possible rehearing — and, maybe, revision — of its ruling striking down the death penalty for the crime of child rape. In an order in Kennedy v. Louisiana (found here), the Court sought briefs from lawyers for both sides in the case, as well as from the federal government. The new briefing in 07-343 is to be completed by Sept. 24 — in advance of the Court’s first Conference of the new Term, on Monday, Sept. 29.

The briefs are to discuss two issues, according to the order: first, whether to grant rehearing of the June 25 decision, and second, what action — if any — the Court should take if it does reopen the case. Here is the way the Court phrased its inquiries: “whether rehearing should be granted” and “the merits of the issue raised in the petition for rehearing” filed by the state of Louisiana on July 21....

In Monday’s order, the Justices sought a supplemental brief of up to 4,500 words from attorneys for Patrick Kennedy, the death-row inmate at the center of the case, with that brief due on Sept. 17. The U.S. Solicitor General’s office is to file a brief of up to 2,500 words, due at the same time, on the federal government’s views. The state of Louisiana is to file a brief of up to 4,500 words, dealing not only with its plea for rehearing, but also “the merits of the issue raised in the petition for rehearing.” That final brief is due Sept. 24.

I presume that, even with this order, amicus briefs are still not permitted in support (or opposition) to the rehearing petition. Still, this is an interesting and exciting development, and I am very much looking forward to seeing what these supplemental briefs look like (and what else gets said about the case in the media and in the blogosphere).

Comments

The scariest comment from the original decision in the Kennedy case was the comment suggesting SCOTUS based their decision on a "general consensus" of the states rather than on the CONSTITUTION. Now it seems public opinion rather than the Constitution in determining the outcome of this case. Its not the first time this happened -- after all, SCOTUS had also upheld the use of concentration camps for Japanese Americans during WW2, and allowed thesterilization of 60,000 or so undesirables in the Eugenics movement. The concept that POPULARITY rather than CONSTITUTIONALITY swaying SCOTUS is a very scary concept!